Permission Culture: Want To Quote A Single Sentence In A Book? Pay Up!

from the copyright-law-at-work dept

Benjamin points us to yet another (and another and another) example of copyright law gone insane. It involves Kyle Gann, a music professor, composer, author, etc. who was working on his latest book, but had to drop an entire section because he wasn't allowed to quote short sentences that are, themselves, apparently considered works of art, without getting permission from the original authors:

I've been trying to get permission simply to refer to Fluxus pieces like La Monte Young's "This piece is little whirlpools in the middle of the ocean," and Yoko Ono's "Listen to the sound of the earth turning." And of course, Yoko (whom I used to know) isn't responding, and La Monte is imposing so many requirements and restrictions that I would have to add a new chapter to the book, and so in frustration well past the eleventh hour, I've excised the pieces from the text.

Yes, it's become so impossible to quote a single short sentence, that it's just not worth doing at all. Welcome to permission society. Some copyright system believers may claim that this is just the market at work, but it certainly seems a lot more like an undue restriction on freedom of expression at the hands of copyright law. I can't see, frankly, how using copyright law to ban such writing isn't a clear violation of the First Amendment. He even wasted a bunch of time thinking about ways around this:

Some of these pieces are too brief to refer to without quoting them in their entirety. How do you use Nam June Paik's "Creep into the vagina of a living female whale" as an example without giving the whole piece away? How am I supposed to refer to it: "Creep into the vagina, etc"? Call it Danger Music No. 5 and tell you to look it up? Paraphrase it: "crawl into the birth canal of a matronly member of the order Cetacea"? And if the copyrights are held by unreasonable people who can hold your book hostage to their detailed demands, then it's just time to find a different research area. The situation is absurd, somebody under whatever questionable chemical influences scrawls seven words on a piece of paper and 50 years later I can't refer to that piece of paper without paying someone some money and following their prescriptions.

Now, I would think that Gann would have a pretty clear claim to fair use if he were to use the phrases he wanted, but it appears his publisher doesn't even want to bother with the potential battle -- and since fair use is (as copyright maximalists gleefully love to remind everyone) merely a "defense" rather than a "right" (which isn't entirely accurate either), the only way to guarantee that this is fair use is to (a) get sued and (b) have a court rule on it -- something that no one should have to contemplate, just while writing a book on art. What a shame and a loss. Yet, it's what this world has become thanks to out of control copyright law and this sense of "permission culture," where even free expression now requires a request for permission and an open checkbook.

Re: (a) get sued and (b) have a court rule on it --

I agree with you.

Mike, I promise that if you can find a good case to persue I will (and the 6200 websites I do work for) would also support the effort to get a better defined Fair Use court decision in place. I have over 6 years experience as a SEO/SEM and would pay up to $400 per month for Adwords for the cause to just get some better defined rulings in place. Even if we lose I would have no problem as long as you can work within a defined set of rules. I am sure I believe the same as many people that even if we don't like the rules as long as we can understand them we can work within them. Right now you just have to hope you didn't miss some arcane decision that will destroy you.

Publisher conflict of interest

Obviously his **publisher** doesn't want to bother with a potential battle - if the he and the publisher win, nothing would stop someone else from doing the same with some other piece of work the publisher controls! Because of the inanity of copyright, the publisher thinks it is less valuable to make money off the book and more valuable to try and squeeze something out of something they already "own."

As much as I hate what "intellectual property" has become in today's world, the original idea for promoting the progress of culture was a good idea. It just depended on copyrights (and patents, etc) being held by reasonable people for a reasonable length of time. We've reached the point where most copyrights and patents are being held by completely unreasonable corporations for excessively unreasonable time periods.

....wow, that was exhilarating. I hereby announce, from this day forward, I will no longer make long-winded diatribes in response to points of view I disagree with. I'm going with this anonymous coward's plan, mis-capitalization and all.

Re: Publisher conflict of interest

Well, that length of time is set by the copyright itself, and any legal artifact that relies upon the reason, benevolence, etc. of its users to avoid being abused is a poorly designed one. With the speed at which technology is being advanced and the low marginal cost at which it can be produced, along with the extensive collaboration enabled by the internet and the modular nature of digital works, IP is a totally different game than the property of the past. Then when we retroactively apply standards created for new technology on old manifestations such as books and music, they become much more restrictive than they used to be.

let them be forgotten.

The solution to this is simple.
Don't write about them.
Don't talk about them.
Don't educate the next generation of artists about them.
Let their art fade with time and be ultimately forgotten. If they want to be unreasonable, let them, and the world will go on just fine without them.

Re: Seeds

Re:

Copyright Mike.

Who is this "Copyright Mike", that you speak of?

Is it Mike Masnick, the man who runs this blog?
Why, I think it may be!

@MikeMasnick, I think this would be an appropriate nickname for you. Just think, when you get an article /.-ed or something, they could write "Copyright Mike wrote...", and instantly everyone would know who, instead of writing "Mike Masnick over at Techdirt wrote..."

It might be because of Gann's own interpretation of copyright law - he is seeking permission (which he may not need), and the rightsholders are being pains in the ass about it.

It might also very well be Gann's publisher's interpretation of copyright law. Having gone through this with a major publisher, I can tell you that they do care about copyrights and do want you to get permission for including someone else's work. They are generally reasonable about it - a short quote, for example, properly cited, won't cause anyone alarm (and they usually have guidelines as to how much you can quote before you need to worry - 175 or 250 words or thereabouts).

Publishers do understand fair use in that context, but they are also 1) conservative and 2) recognize that, as commercial publishers of commercial work, they are already down a peg on the "purpose and character" fair use test. As such, they tend to adopt a "better safe than sorry" model.

Ignoring all that, this case seems to be unusual in a few other regards. First, the author seems to be writing a book about John Cage. Cage, or rather his estate, has been involved in some of the more ridiculous copyright contortions seen. The instances where he wants to copy a sentence or two seem to be works where the entire work is a single sentence. It would not surprise me to find out that an "artist" who considers a single sentence sufficiently profound to need protection is especially apt to sue someone for copyright violation of the same single sentence, perhaps declaring the act to be some sort of avante-garde performance art. Unfortunately, the legal system is, in nearly all cases, reticent to remove someone's right to sue. Due process and all. Some states and other areas are enacting anti-SLAPP laws that greatly reduce the threat posed by such frivolous lawsuits.

So, even though publishers can be very (perhaps excessively) touchy about copyright issues, they may be justified in this case since the particular artists involved--if they're anything like Cage or Cage's estate--may be in a camp that will cause legal trouble for the publisher just because they can.

I can provide a little information about what the process is actually like in the nominal case - when you're not dealing with fringe artists, fringe works, and an author or publisher who seems ignorant of or unwilling to negotiate on copyright.

Getting permissions to use others' work in a book of yours is, assuredly, a minor pain in the ass. You have to be diligent about where you used the work of others. I'm not sure that requiring a small bit of diligence in this regard is a bad thing; we've recently seen a high-profile example of what happens when you don't carefully keep track of these things.

You then have to get the copyright-holder's permission. Most people are quite friendly about it. If you can't contact the author directly, there is nearly always a readily available rights and permissions address, phone number, or website in the source you're quoting. They generally require a little paperwork and sometimes a small fee ($20 or $30) for unlimited commercial publication. They may also require a disclaimer in the front of your work.

Some people and publishers are not reasonable. One particular dictionary wanted several hundred dollars per definition. The solution to that was simple enough: use different definitions. Another institutional copyright holder requested a nearly page-long disclaimer for a single figure. They won that round. I was particularly amused by this because my opinion of this particular institution was that it was full of gits, and this experience did nothing to dissuade me from my opinion. In 20-30 sources, though, these were the exceptions.

In the end, this minor pain in the ass doesn't rise to the level of a condemnation of the entire system. The system could be more efficient (most publishers still want you to use--horrors!--written letters and physical stamps and such), and things would be even easier if there were some sort of compulsory mechanical license for written and graphical works. Fair use could be increasingly clarified by the courts. But to claim that things are "out of control" is a little histrionic.

Re: Re:

As someone who believe strongly in the First Amendment, the suppression of free expression thanks to the presence of federal law strikes me as quite problematic.

How is this even relevant to this discussion?

You have no idea if the law is suppressing Gann's expressions, and it seems neither does Gann.

It's not clear that 1) these "works" are even covered by copyright, nor 2) that Gann's uses are not fair use. It's not even Gann's expressions that are even on the table as being possibly suppressed, it's Gann's use of others' expressions. Gann doesn't even seem to be that repressed, seeing as he includes these works freely in a blog post.

Nearly nothing, not even the First Amendment, can protect Gann from getting sued - frivolously or otherwise. It can prevent him from LOSING that lawsuit, but it cannot prevent him from being sued.

Re: Re:

@ Doctor Strange

The point is that he cannot enter the text of the works he seeks to site into a published work of his own, in what virtually anyone would consider to be a perfectly acceptable way.

If we do not know if the law is suppressing Gann's expressions, and Gann doesn't either, the law has failed totally and become useless. For there to be a question concerning such a basic point is laughable. And if the only way to find out is to initiate a suit, at the cost of one's self or the opposing party...this is even less acceptable.

Fair Use idea?

God, this is getting so frustrating to work with.

Perhaps we could petition to setup a legally recognized organization with the ability to determine "fair use."
Basically send in a brief and have it ruled preemptively as fair use before publishing/implementation and therefore exempt.

Admitedly, as an economist I recognize that this places significant friction in what otherwise SHOULD be a rather frictionless process.

HOWEVER, preemptive rulings will shut up those who sue at the drop of a hat. If we implement the right (requirement) of a court to fine those who bring suit against the party who obtained preemptive fair use, it WILL dampen the random suing of individuals by presumptive "rights owners."

Essentially, we can use the "chilling effect" in the opposite manner, where people become reluctant to sue under the presumption that prior fair use was already obtained and thus that they face an automatic fail.

Since the use would be determined by a legal body, there could be no belly-aching about "enabling rampant file-sharing," since it would already be denied in such cases (except in rare circumstance) from fair use.

ON THE OTHER HAND, it would prevent the RIAA, MPAA and various record companies from being so triggerhappy in gunning for derivative works in an attempt to shut them down.

Who loses?

I think the only person that loses is the people who think they deserved to be payed for the small quotes. They could have made it in a book thus insuring their lasting impact and instead they are excluded. The book is likely still brilliant, so who loses? Not the reader and not the author it is the artists. It is absurd the way some people think.

Of course I wouldn't have even thought this would ever be an issue. I cited music sources all the time in college. I couldn't imagine having to pay for them. I think fair use is clearly on his side. Shame the publisher got in the way. All the publisher needed to do was say, "go ahead, I dare you, sue me."

Re: (a) get sued and (b) have a court rule on it --

That won't solve anything. The next time somebody wants to use something (even the very same thing in question here), in order to be assured it's fair use, they'll also have to get sued, because it's a different use. Therefore there is no precedent set by the previous lawsuit. Copyright reform is the only solution, and that isn't looking very promising.

It is fair use.

It is fair use for you to reprint single sentences or paragraphs in a scholarly work. "The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations..." from http://www.copyright.gov/fls/fl102.html

CwF+RtB ideas

Why not add a $10 donation tier, or take 5% of other donations or some such and once a certain amount has been met (10k for the sake of argument, though IANAL and cannot say how much a good one would cost) and once that is met make a very smart 'assault' on copyright by making use of fair use AND defending it in court?

I am a fan. You like fair use, I like fair use. Now we have a connection.

Every penny of a donation will go to defending fair use in a court case. Now there is a reason to buy.

copyright law

Quoting from someone's work is FREE ADVERTISING! Duh! If someone wants to quote from the book I'm writing, I hope they have a best seller. I've bought books because something quoted inspired me, aroused my curiosity, or got me interested. Some publishers act like they want to wring every last dollar out of a quote. One publisher I requested permission from wanted $2,000 for one and a half sentences, putting severe restrictions on the number of books I could use it in before reapplying. They would have depleted any royalties I might have gotten if I had agreed. I removed all reference from my work. Some publishers make getting permission a pleasure. Some make it a trauma that is not worth using any quote, no matter how well it fits the example. The human species is going to strangle itself to death if people don't start waking up and chilling out their adversary greed. Americans are going to kill liberty if they don't start paying attention. Don't wait for Congress to clarify copyright law, make it easy, or intelligible. They're too busy courting the one percent. Corporations and Congress act like they want to inspire a revolution rather than be out on the leading edge of a free people. Getting a permission is a perfect example of the vast disparity of where people fall on the scale of the polarity. Publishers ought to start putting an entry page in their books declaring what they consider Fair Use, encouraging people to quote their works, opening up a new market. That would be a worthy law to pass. Greed is shrinking their brains and making them stupid enough to lose a great opportunity. As for Yoko Ono not responding to a request for permission to use a quote, referred to above, even if the original use was only the one line, it could get picked up by the new generation getting inspired and starting a new renaissance. Isn't that what she and John Lennon were about? She might have had a whole new source of income having her work revived. Oh, well, human potential might be magnificent, but the human condition does not always tell that story. Writing the work and living the creative process is the art, and that is one thing. Getting something published and entering the corporate realm is quite another. The creative process is the light side of polarity, the corporate realm, the dark. If that's the path you're following, get ready!